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Closed material in UK proceedings cannot be disclosed in Strasbourg

It is for the UK government to decide whether to vary an order preventing publication of material heard in private in a murder trial, if the offender goes on to petition the European Court of Human Rights. It is not for the Strasbourg Court to determine whether the right to a fair trial should outweigh the risks to UK national security reasons.

The question regarding a state’s obligation not to impede the right of individual petition to Strasbourg arose where the applicant offender applied for an order permitting him to refer to material, which had been restricted on national security grounds during his murder trial, in an application to the European Court of Human Rights.

Background

The applicant had been convicted of murder during a trial in which the judge had ordered that the public and press were to be excluded from parts of the hearing. The judge also made an order under the Contempt of Court Act 1981 (CCA) that no report was to be published revealing or speculating about any material dealt with in private. The judge held that there was a sufficiently serious risk of damage to national security concerns if the material was not restricted that the Crown might decide to drop the prosecution, whereas a fair trial would be possible with those restrictions. The Court of Appeal upheld the CCA order and later dismissed the applicant’s appeal against conviction, which had been argued on the ground that the exclusionary order had deprived him of media coverage that could have encouraged more witnesses to come forward.

The applicant petitioned to the Strasbourg Court, claiming that his right to a fair trial under Article 6 of the European Convention on Human Rights had been breached by the hearing of his defence in private. He wished to refer to the “in camera” material in his response to the UK Government’s observations on that application, albeit subject to such restrictions on its public use as the Strasbourg Court might impose. Strasbourg informed the domestic court that it had procedures in place to ensure the safe storage of secret documents should the need arise. The issue was whether the CCA order prevented the applicant from referring to the material in his application to the Court.

The applicant submitted that the order did not in terms restrict references to the material in applications to Strasbourg, nor should it because of the international obligations to which the court should give effect.

Ouseley J concluded that there was no reason to vary the order to enable the material to be deployed in Strasbourg, and dismissed the application.

Reasoning behind the judgment

The circumstances that led to the need for parts of the evidence not to be made available to the public and press remained unchanged and the purpose of the exclusionary order would be put at risk by disclosure of the private evidence to the Strasbourg Court. There was very good reason for the court not to vary the CCA order to permit disclosure. It was for the UK Government to decide whether to comply with the obligation under Article 34 of the European Convention on Human Rights not to hinder an individual’s right to petition the Strasbourg Court and the allied duty under Article 38 to assist that Court in its examination of a case and furnish all necessary facilities. Both Articles may be binding on state parties but that does not mean that they are part of domestic law.

Strasbourg could draw adverse inferences against the Government if it breached those obligations, but it was not the domestic court’s function to enforce the Court’s procedural rules. In Janowiec v Russia (55508/07) (2014) 58 EHRR 30 (the Katyn massacre case), the Grand Chamber stipulated that any material it requested on receiving a petition had to be submitted by the respondent state in its entirety if the Court had so directed, and any missing elements had to be accounted for properly. However, that judgment also implied that a government might legitimately decline to provide otherwise relevant material, on the grounds of national security or other confidentiality, if it explained why and how the decision was arrived at. Although the Strasbourg Court regarded the decision as one that it itself should take, it would take account of the extent to which an independent domestic court had examined the merits of the claimed public interest and supported it.

The Court reiterates that the judgment by the national authorities in any particular case that national security considerations are involved is one which it is not well equipped to challenge. … If there was no possibility to challenge effectively the executive’s assertion that national security was at stake, the State authorities would be able to encroach arbitrarily on rights protected by the Convention. [para 213 of Janowiec]

But this case was completely different to Janowiec. Here, the “in camera” order was not made on the basis of a mere request or say so by the Crown or without evidence justifying the application for evidence to be heard in camera. Evidence was given, and was open for cross-examination on behalf of Wang Yam. As Ouseley J pointed out,

This evidence and the effect on the fairness of the trial were considered, with evidence and submissions, by the trial judge, and by the Court of Appeal both before and after the trial. If either Court had thought that a fair trial would not take place if evidence were heard in camera, the evidence would not have been heard in camera, and there was a really serious risk that the trial for murder would not have taken place.

The judge dismissed the applicant’s contention that it was not for the Government, especially not as a party, to try to inhibit the Strasbourg Court from seeing the “in camera” material; rather it should ask that Court to use its procedural powers to hear the case “in camera” and to protect such material. On the contrary, he pointed out, it was not for the instant court to deprive the Government of the option of protecting the material by deciding to comply with any Strasbourg disclosure requirements. The effect of a defendant having access to private material could not mean that the Government was powerless to prevent its disclosure to Strasbourg.

Section 2 of the Human Rights Act requires a UK Court to have regard to the various decisions and judgements of Strasbourg, and of the Committee of Ministers of the Council of Europe, through which its decisions are enforced. The domestic Courts however do not act as the enforcement arm of the Strasbourg Court in respect of such obligations. Still less is it the function of domestic Courts to enforce the Strasbourg Court’s procedural rules.

The order excluding the public from the private parts of the trial would have excluded members of the Strasbourg Court as being part of the public. Ouseley J appreciated the force of the argument that an application to Strasbourg, while clearly a communication in some form, may not be one addressed to “any section of the public”. However, once the addressee falls outside the scope of those entitled to receive the information, they are for these purposes a section of the public. The CCA order therefore was to be varied only to the extent that the following words should be added, to make its meaning quite clear:

“For the avoidance of doubt, no document or other communication in whatever form shall disclose any of the material to which the prohibition in the preceding sentence applies, or make it available, to any one who was or would have been excluded from the “in camera” parts of the trial, including the staff and members of the European Court of Human Rights.”

And, lest anyone was left in any doubt, the judge concluded with this reminder of just where the Strasbourg Court fits in to the constitutional hierarchy:

The staff and members of the Strasbourg Court would have been excluded from the trial as part of the public. The ECtHR is not another domestic appellate tier. Its Judges and staff owe no allegiance to the Crown. They do not apply UK domestic law. The various protected interests cannot be explained to it without risk of harm to those interests.

…The Strasbourg Court is simply not in the same position as the UK Court when it comes to the approach to such material, any balancing of interests in respect of it, its protection, and the enforcement of such protection as it orders.

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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.